Protection of Marine Mammals (HSTT)

Nature of Case:
AWI and its co-plaintiffs brought claims against the National Marine Fisheries Service and the US Navy over its five-year plan for testing and training activities in the Hawai'i-Southern California Training and Testing (HSTT) Study Area. The operations include active sonar and explosives, which are known to cause permanent injuries and deaths to marine mammals and sea turtles.

Defendants:
National Marine Fisheries Services; United States Department of Commerce (Penny Pritzker, Secretary of Commerce); United States Department of the Navy; United States Department of Defense (Chuck Hagel, Secretary of Defense).

Status:
Defendants are scheduled to lodge the Administrative Record with the court by April 30, 2014. Substantive briefing is expected to commence sometime thereafter.

Protection of Marine Mammals (HSTT): Background

AWI and three other groups have filed suit against the US Navy and the National Marine Fisheries Service (NMFS), claiming that these government entities violated the National Environmental Policy Act (NEPA, 42 U.S.C. §§ 4321 et seq.) when they relied on a legally defective environmental impact statement to give the green light to the Navy’s five-year plan for testing and training activities off Hawai‘i and Southern California, which the Navy and NMFS admit will cause nearly 9.6 million instances of harm to whales, dolphins and other marine mammals—including 155 marine mammal deaths and over 2,000 permanent injuries—and will kill up to 85 critically imperiled sea turtles. NEPA requires that a range of alternatives be considered, including alternatives that could be pursued with less environmental harm, and that the public have an opportunity to review and comment on that analysis. The groups have gone to court because NMFS approved the Navy’s plan without evaluating any alternatives that would place biologically important areas off-limits to training and testing.

The amended complaint, filed on January 15, 2014, further claims that in authorizing the Navy’s training and testing, NMFS violated its legal duty under the Endangered Species Act (16 U.S.C. §§ 1531 et seq.) to protect endangered whales and turtles from extinction and under the Marine Mammal Protection Act (16 U.S.C. §§ 1361 et seq.) to prevent harm to marine mammal populations.

Ocean mammals depend on hearing for navigation, feeding, and reproduction. Scientists have linked military sonar and live-fire activities to mass whale beaching, exploded eardrums, and even death. In 2004, during war games near Hawai‘i, the Navy’s sonar was implicated in a mass stranding of up to 200 melon-headed whales in Hanalei Bay, Kaua‘i. The Navy and NMFS estimate that, over the plan’s five-year period, training and testing activities will result in thousands of animals suffering permanent hearing loss, lung injuries or death. Millions of animals will be exposed to temporary injuries and disturbances, with many subjected to multiple harmful exposures.

Earthjustice, which filed the lawsuit, represents Conservation Council for Hawai‘i, AWI, the Center for Biological Diversity and the Ocean Mammal Institute in this matter.